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Recently, in Intellectual Laziness on the Supreme Court, a short essay about the Supreme Court’s recent Equal Protection decision about unequal property assessments, Professor Richard Epstein wrote, “[i]t’s time to scrap the irrational ‘rational basis test.'” Decisions like the Ninth Circuit’s recent opinion in Samson v. City of Bainbridge Island, No. 10-35352 (9th Cir. June 15, 2012) make you think he’s onto something.

We were about to do a detailed post about the case, when our partner Mark Murakami beat us to it, so we won’t repeat the facts or the panel’s analysis (more accurately, lack of analysis, given the application of the “rational basis” test) here. Instead, we offer these thoughts:

  • A property owner can win in state court, and obtain a ruling that a temporary building moratorium is unconstitutional, but a permanent prohibition is not? That’s because the ruling was one of Washington state

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Continue Reading 9th Circuit Weeps For Property Owners Subject To “Long Odyssey,” But Still Rules Against Them

This just in: the Ninth Circuit has issued an opinion in Kaahumanu v. State of Hawaii Dep’t of Land and Natural Resources, No. 10-15645 (June 6, 2012), the case challenging the State’s regulation of commercial weddings on state beaches under the First Amendment. The court mostly upheld the regulations, but struck down the power of government officials to revoke a permit and modify it.

More, after a chance to digest the opinion.

Kaahumanu v. Dep’t of Land and Natural Resources, No. 10-15645 (9th Cir June 6, 2012)Continue Reading 9th Circuit: Hawaii’s Regulation Of Commercial Beach Weddings Does Not Violate First Amendment, Except…

In a per curiam unpublished decision, the U.S. Court of Appeals for the 11th Circuit affirmed the district court’s dismissal in Crystal Dunes Owners Ass’n v. City of Destin, No. 2011-14595 (Apr. 17, 2012) (per curiam opinion here, or below).

The plaintiffs own a strip of private beach in Destin, Florida. If the name of that locale sounds familiar, it’s because its the site of the Supreme Court’s recent decision in Stop the Beach Renourishment v. Florida Dep’t of Environmental Protection, in which the Court declined to confirm the existence of a “judicial takings” theory of recovery where the plaintiffs claimed the Florida Supreme Court changed the rules midstream and took their property as a consequence.

The latest case does not involve a claim of judicial takings, but has its genesis in the property owners’ beef with other branches of government, the city and the sheriff’s department.

Continue Reading 11th Cir: Property Owners Should Use Self-Help To Evict Private Beach Trespassers (Because Florida Self-Help Laws Always Work Out So Well)

Today, the Texas Supreme Court issued opinions in Severance v. Patterson, No. 09-0387, the case before the court on certified questions from the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit asked whether Texas recognizes a “rolling” beachfront access easement (a public easement on littoral property that moves with naturally caused changes in the vegetation line without proof of prescription, if Texas does recognize such an easement, what is its source (statute or common law), and would a landowner subject to this easement be able to obtain compensation under Texas procedures?  More on the case background here.

The Texas Supreme Court had issued opinions in 2010 affirming that no such “rolling easement” existed (opinions and briefs available here), only to grant the government’s motion for rehearing, apparently something you can do under Texas appellate procedure. So nearly a year ago, the Supreme Court…

Continue Reading Texas (Again) Affirms Property Rights: No “Rolling Easement” On Beaches

There’s a feature story in today’s Honolulu Star-Advertiser, “Red tape ties up groups’ fishpond restorations,” about a local caretaker group’s frustration with “government rules” they claim are thwarting their efforts to fix up a traditional littoral fishpond.

For those of you not familiar with these centuries-old aquacultural structures designed to catch and raise fish that once dotted the shores of most every Hawaiian island, check out Kaiser Aetna v. United States, 444 U.S. 164 (1979), the U.S. Supreme Court’s decision upholding the private nature of these structures. For a slightly more recent case protecting the private status of a  fishpond on Molokai see Boone v. United States, 944 F.2d 1489 (9th Cir. 1991). Disclosure: we represented the property owners in both cases.

The S-A story is mostly behind a paywall, so for those without subscriptions or access to the hard copy, here’s the short…

Continue Reading Trickle-Down Regulation: Environmental Maze Becomes “Stumbling Block” For The Little Guys

Gideon Kanner reminds us of the passing of retired California Court of Appeal Justice Lynn “Buck” Compton, famous of late for his exploits as a hard-charging paratrooper in World War II (L.A. Times story here). Gideon writes about Justice Compton’s time on the bench:

No, we aren’t going to wax lyrical about the high profile criminal cases in which he was involved, first as a prosecutor and later as a judge. We leave that to the popular press. We do wish to note that “Buck” Compton was one of the few — very few — California appellate judges who would give condemnees an even break, and for that he deserves our, and your thanks. He was tough-looking and blunt, but you knew when you appeared before him on behalf of property owners in an eminent domain case that he would listen to your arguments and give them fair …

Continue Reading Justice Lynn “Buck” Compton

Regulatingparadise Professor Patricia E. Salkin (of the Law of the Land blog) has written this review of Professor David Callies’ Regulating Paradise: Land Use Controls in Hawaii (2d ed. 2010). The review is in the latest edition of the Urban Lawyer (43 Urb. Lawyer 1107 (2011)), the law review published by the ABA’s Section of State & Local Government Law.

Professor Salkin writes:

Unlike mainland states, the history of land ownership and regulation in Hawai’i—dating back to the mid 1800s—is unique and deeply rooted in centralized control both before and after the State became a territory. Callies explains how the State’s oft-studied 1961 land use law continued this trend, with zoning accomplished at the state level. He points out that from this strong tradition of centralized control, however, a new system of land use regulation has emerged with layers of county laws and the influence of myriad federal statutes and…

Continue Reading Book Review: Callies, Regulating Paradise (2d ed. 2010)

In our law review article on Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Environmental Protection, 103 S. Ct. 2592 (2010), we predicted that “the fractured opinions in the case will be a boon for academics who may continue the search for the ‘takings quark’ (if not woodchucks) in the pages of law journals.” Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches, 35 Vt. L. Rev. 437 (2010).

It looks like our prediction is (thankfully) being borne out: earlier this week we posted a new article from the Stanford Law Review (here), and now comes another scholarly piece on the judicial takings issue, this time from the Cornell Law Review: Eduardo M. Penalver & Lior Jacob Strahilevitz, Judicial Takings or Due Process?, 97 Cornell L. Rev. 305 (2012) (pdf available here). Here’s the summary:

In Stop the Beach…

Continue Reading New Article: Judicial Takings or Due Process? (Cornell Law Review)

A recently-published Note from the Stanford Law Review: Josh Patashnik, Bringing a Judicial Takings Claim, 64 Stan. L. Rev. 255 (Jan. 2012). Here’s the abstract:

This Note seeks to answer a set of questions prompted by the Supreme Court’s 2010 decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. In that case, six Justices recognized that the Constitution provides some protection against so-called judicial takings—court decisions that, like executive and legislative action, might be deemed to take property rights. But the Court’s fractured holding provided little guidance on a handful of practical issues that will be of immense interest to potential judicial takings plaintiffs, like whether such claims can be brought in federal court and what remedies might be available. I argue that a judicial takings plaintiff should be able to bring her case in federal district court, notwithstanding the barriers the Supreme…

Continue Reading New Article: Bringing a Judicial Takings Claim (Stanford Law Review)

12.WATHIThere is still time to join us for the upcoming Hawaii Water Law conference, to be held in Honolulu on January 11, 2012. I am the planning co-chair along with Jesse Souki, Director of the State of Hawaii Office of Planning.

In addition to Jesse and me, we’ve assembled a diverse and talented faculty: UH lawprof David Callies will speak with Elijah Yip (Cades) on the latest developments in water law and public trust litigation. State Water Commissioner Lawrence Miike will update us on the latest goings-on at the Commission. My Damon Key partner Greg Kugle is speaking with Leo Asuncion, the Manager of the Coastal Zone Management Program at the State Office of Planning on coastal issues.

After lunch, we have a special guest, Ed Thomas (a lawyer and President of the National Hazard Mitigation Association, and a nationaly known expert in floodplain management and…

Continue Reading Hawaii Water Law Conference (Jan. 11, 2012)